Punjab-Haryana High Court
Manoj Kumar Sondhi vs State Of Punjab on 31 August, 2013
Author: S.S. Saron
Bench: S.S.Saron
CRA No.S-1035-SB of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.S-1035-SB of 2010
Date of decision: 31.08.2013
Manoj Kumar Sondhi .....appellant
versus
State of Punjab .... Respondent
CORAM : HON'BLE MR. JUSTICE S.S.SARON
Present: Ms. G. K. Mann, Advocate for the appellant.
Mr. S.S.Dhaliwal, Addl. AG, Punjab.
S.S. SARON, J.
The appellant has filed this appeal against the judgment and order dated 31.03.2010 passed by the learned Sessions Judge, Jalandhar whereby he has been convicted for the offence punishable under Section 376 Indian Penal Code ('IPC'-for short) and has sentenced to undergo rigorous imprisonment for a period of seven years; besides, pay a fine of Rs.5000/- and in default thereof to undergo rigorous imprisonment for one year.
The FIR (Ex.PG/2) has been registered on the statement (Ex.PG) of Shiv Kumar father of the prosecutrix. The complainant- Shiv Kumar alleged that he is resident of Preet Nagar, Sodhal Road, Jalandhar. At his house he, his wife namely Seema (PW-9), elder son namely Sunny aged 19 years, younger daughter (prosecutrix) (PW-10) who had recently appeared in her 10th class examination Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -2- and his youngest son namely Mani aged about 15 years live. The complainant-Shiv Kumar works as a Fitter at M/s Seetal Factory. His son Sunny sets up coffee stalls in marriages. Manoj Sondhi (appellant) who represents himself as Joint Secretary of the Punjab Pradesh Congress Committee for the last six months often used to visit their house. The appellant's wife namely Sonia also visited their house several times with him. They had three children. The complainant and his son namely Sunny used to go for their work at about 8.00 am in the morning and return home at about 8-9 o'clock in the evening. His wife Seema (PW-9), daughter (prosecutrix) (PW-
10) and son namely Mani stayed back at home. On 13.05.2008 as usual the complainant and his son Sunny went for their work in the morning. When the complainant returned back at about 9 o' clock in the evening then his wife Seema (PW-9) informed him that his daughter (prosecutrix) went out of the house about 1.30 pm and had not returned. Till the date of lodging the report i.e. 16.05.2008, they had been searching for her. On the date of making the report i.e. 16.05.2005 they got to know that aforesaid Manoj Sondhi (appellant) had taken his daughter (prosecutrix) (PW-10) by threat and inducement. They tried to contact him but they could not. It was also learnt that Manoj Sondhi (appellant) had been away from his house since that day (i.e. 13.05.2008). On the day of lodging the report i.e. 16.05.2008, the complainant along with his friend Somnath alias Soma son of Shri Sohan Lal Keshav were going to inform the police that the police met them and his statement was recorded. Legal Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -3- action was asked to be taken against Manoj Sondhi (appellant) and the daughter of the complainant was asked to be recovered. The statement of the complainant Shiv Kumar was thumb marked by him by putting his left thumb impression which was attested by ASI Hans Raj Police Station Division No.3, Jalandhar (PW-11) who had recorded the statement. Police Proceedings (Ex.PG/1) were recorded by ASI Hans Raj (PW-11) that on 16.05.2009 he along with other officials were present at Bhagat Singh Chowk, Jalandhar in connection with patroling and checking of bad elements that Shiv Kumar (complainant) along with Somnath alias Soma son of Shri Sohan Lal Keshav got his statement (Ex.PG) recorded. It was read over and explained to him and he after accepting the same as correct put his left thumb impression below it, which he attested. From the aforesaid statement a case for the offences under Sections 363 and 366 IPC was made out. Accordingly a memo ('ruqa') was written and sent to the police station through Constable Baljit Singh for registration of a case (FIR). The number of the case was asked to be intimated after its registration. The special reports were asked to be issued to the Senior Officers. The control room was also asked to be informed through telephone/wireless. ASI Hans Raj (PW-11) along with the Police officials accompanying him as also the complainant Shiv Kumar and Somnath alias Sonu left for the place of occurrence for investigation. The police proceedings were signed by ASI Hans Raj (PW-11) in the area of Bhagat Singh Chowk, Jalandhar at 8.10 pm. At the Police Station ASI Jeevan Singh received the Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -4- writing and on the basis of the same, he recorded 'rapat' No.25/27 at 8.30/9.30 pm and registered FIR No.40 dated 16.05.2008 (Ex.PG/2) for the offences under Sections 363 and 366 IPC.
ASI Hans Raj (PW-11) reached the place of occurrence. Seema (PW-9) mother of the prosecutrix produced the matric standard examination certificate of her daughter (prosecutrix) (PW-
10). ASI Hans Raj (PW-11) took the certificate (Ex.PH) in his possession vide memo (EX.PJ) . He recorded statements of witnesses. On 17.05.2008 ASI Hans Raj (PW-11) recorded statement of Mohan Singh Head Constable regarding the special report that he had delivered. He searched for the accused. On 28.05.2008 he was present at Madan Flour Mill in connection with patrolling when Seema Rani (PW-9) came to him at that place. She was accompanied by Rajinder Kumar alias Neeta. She disclosed that the prosecutrix (PW-10) and Manoj Sondhi (appellant) were present at the house of Madan Mohan son of Mehga Ram situated at Dhikiwali Gali, Qilla Mohalla, Ludhiana and that in case a raid was conducted at that very time, they could be recovered from there. ASI Hans Raj (PW-11) accompanied by Seema Rani (PW-9) and Madan Mohan son of Mehga Ram went to Ludhiana. He got his arrival recorded with Police Station Division No.4, Ludhaina. Then a raid was conducted at the aforesaid house. Manoj Sondhi (appellant) and the prosecutrix (PW-10) were recovered from the house of Madan Mohan. He prepared a memo (Ex.PK) of their recovery which was attested by Rajinder Kumar, Seema Rani and lady constable Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -5- Baksho Rani. ASI Hans Raj (PW-11) arrested the accused (appellant) and gave information about his arrest to his father. Prosecutrix (PW-10) was handed over to her parents and memo (Ex.PL) in this regard was prepared which was attested by the above said witnesses. On the next day ASI Hans Raj (PW-11) went to Civil Hospital, Jalandhar and submitted written applications (Ex.PM and Ex.PN) for the medical examinations of the accused (appellant) and the prosecutrix (PW-10). Dr. Raj Kumar (PW-2) conducted the medical examination of the accused (appellant) and Dr. Damanjeet (PW-1) conducted the medical examination of the prosecutrix (PW-
10). The girl was then sent with her parents.
ASI Hans Raj (PW-11) on 30.05.2008 submitted a written application (Ex.PO) before Shri Manoj Kumar Judicial Magistrate Ist Class, Jalandhar (PW-3) for recording the statement of the prosecutrix (PW-10) under Section 164 of the Code of Criminal Proceudre ('Cr.P.C'-for short). The Magistrate (PW-3) recorded her statement and after her statement was recorded she was allowed and go with her parents. ASI Hans Raj (PW-11) on 31.05.2008 in the morning was present at the police station. Subhash Sondhi and Ranjit Kaur produced Lucky alias Randhir Singh (accused and since acquitted). After making inquires from him he was arrested in the case. Hans Raj ASI (PW-11) got the birth certificate of the prosecutrix verified from Jeet Singh Secretary, Punjab School Education Board. After completing the investigations the accused Manoj Sondhi (appellant) and Lucky alias Randhir Singh (since Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -6- acquitted) were charge sheeted ('challaned') on 04.08.2008 by SI Harvinder Singh SHO under Section 173 Cr.P.C.
Shri Manoj Kumar Judicial Magistrate Ist Class, Jalandhar vide order dated 18.08.2008 committed the case to the Court of learned Sessions Judge, Jalandhar as the police report ('challan') had been filed alleging commission of offences under Sections 363, 366, 376 and 120-B IPC and the offences under Sections 366 and 376 IPC were exclusively triable by the Court of Session. The case was received by commitment by the learned Sessions Judge, Jalandhar and he framed charges against the two accused namely Manoj Sondhi (appellant) and Randhir Singh alias Lucky (since acquitted). It was alleged that firstly Randhir Singh alias Lucky on 13.05.2008 in the area of bus stand, Jalandhar abducted a woman (prosecutrix) with an intention that she may be forced to illicit intercourse and thereby committed an offence punishable under Section 366 IPC and within the cognizance of the Court of Session. Secondly Manoj Sondhi (appellant) on 13.05.2008 in the area of Mathura committed rape on the prosecutrix and thereby committed an offence punishable under Section 376 IPC and within the cognizance of the Court of Session. Thirdly Manoj Kumar Sondhi (appellant) on 13.05.2008 in the area of Agra, Kolkata, Rohtak, Ludhiana committed rape on the prosecutrix and thereby committed an offence punishable under Section 376 IPC and within the cognizance of the Court of Session. It was directed that both the accused be tried by the said Court. The contents of the charges Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -7- were read over and explained to the accused in simple Punjabi.
The prosecution in order to establish its case examined Dr. Damanjit, Medical Officer, Civil Hospital, Jalandhar (PW-1) who conducted medical examination of the prosecutrix (PW-10). On the gynaecological examination of the prosecutrix (PW-10), her hymen was found torn. Vagina admitted two fingers. Uterus was normal in size, firm and mobile. Fornices were clear. Her last menstrual period was 13.05.2008. Two vaginal smears slides and two vaginal swabs were taken and sent for chemical examination. On receipt of chemical examiner's report (Ex.PB) she gave her opinion (Ex.PC) that the prosecutrix (PW-10) had been subjected to sexual intercourse. In cross examination it is stated by Dr. Damanjit (PW-1) that no proof regarding age of the prosecutrix in writing was produced before her. The wearing apparels allegedly worn by the prosecutrix at the time of commission of sexual intercourse were not produced before her. It is stated as correct that when vagina of a girl admits two fingers, it can be inferred that she was habitual to sexual intercourse. It was incorrect that she had made a false statement.
Dr. Raj Kumar Medical Officer Civil Hospital (PW-2) deposed that in his opinion there was nothing to suggest that Manoj Sondhi (appellant) was unable to perform sexual intercourse. He submitted his report (Ex.PD) in this regard. He had seen the boy. He was a political leader and had been coming to him off and on. He was present in Court and he duly identified him. He was not cross- examined.
Amit Khanchi2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -8-
Shri Manoj Kumar Singla, Judicial Magistrate Ist Class, Jalandhar (PW-3) stated that on 30.05.2008, ASI Hans Raj (PW-11) moved an application before him for recording the statement of the prosecutrix (PW-10). ASI Hans Raj (PW-11) identified the prosecutrix (PW-10) and he recorded her statement (Ex.PE). After recording it he read out the contents thereof to her. After admitting the same to be correct she put her signatures on it. He also appended his signatures. In cross examination it is stated that he did not know if the accused of this case were in the judicial custody when he recorded the statement (Ex.PE) of the prosecutrix. No application had been moved before him on that day by the police for conducting test identification parade for getting the accused identified from the prosecutrix. He himself did not put any question to the prosecutrix and recorded her statement as per her version. ASI Hans Raj (PW-11) had not produced any proof regarding identification of the prosecutrix (PW-10). He had also not produced documents regarding her age.
Constable Baljit Singh (PW-4) tendered in evidence his affidavit (Ex.PF) which is to the effect that on 29.05.2008 he along with lady constable Baksho Rani and ASI Hans Raj (PW-11) had gone to Civil Hospital, Jalandhar in connection with getting the medical examination of the prosecutrix conducted. On that day Damanjit Kaur (PW-1) gave a sealed envelope which included vaginal swabs in a bottle duly sealed, which he deposited with chemical examiner at Kharar in a proper condition. The receipt Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -9- regarding which was given to the MHC Nirmal Singh. In cross- examination he stated that he could not tell the name of the person who had produced the middle standard examination certificate of the prosecutrix before ASI Hans Raj (PW-11). He did not know the date of birth recorded in the birth certificate. It is stated as incorrect that he had made a false statement.
Jit Singh, Deputy Manager, Punjab School Education Board, Ladowali Road, Jalandhar (PW-5) was examined. He produced gazette of middle standard examination conducted by the Punjab School Education Board in the year 2006. As per this record, the prosecutrix appeared in this examination against Roll No.623354. Her date of birth as per entry in the gazette was recorded as 26.09.1990. In cross-examination he stated that he had not seen the birth certificate of the prosecutrix personally.
Rajinder Kumar (PW-6) a friend of Shiv Kumar complainant was examined. On 28.05.2008, the complainant accompanied by his wife Seema Rani (PW-9) came to him and informed that they had received a telephone call that their daughter was at Ludhiana. Then all of them accompanied ASI Hans Raj (PW-11) to Ladowali Road. From there they went to Police Station Division No.4, Ludhiana. Then they went to Qilla Mohalla, Tikki Wali Gali. From where the prosecutrix was recovered from the custody of Manoj Sondhi (appellant). She was entrusted to them by ASI Hans Raj (PW-11). His statement was recorded. In cross-examination he stated as incorrect that the prosecutrix was not recovered from the custody of Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -10- Manoj Sondhi (appellant).
Manmohan Singh Head Constable (PW-7) was examined. He proved delivery of the special reports. One of them was to Shri Manoj Kumar, Judicial Magistrate Ist Class, Jalandhar (PW-3).
Veenu Sangha (PW-8) was examined. He stated that on 13.05.2008 at about 7.30 pm he was present at bus stand Jalandhar as he was to go to Phagwara in connection with his work of Junk Dealer. At that time he saw Lucky accused and the prosecutrix standing together at the bus stand. Both of them were standing at the counter of Chandigarh. His statement was recorded by the police. In cross-examination he stated that he knew the prosecutrix for the last three years. She was not related to him. He had no talk with Lucky or the prosecutrix. He himself had not seen them boarding any bus. Both of them were just standing there and were not talking to anyone. He at that time entertained no doubt regarding them. In further cross-examination he stated that number of persons were present at the bus stand when he saw the accused with prosecutrix.
Seema Rani (PW-9) is the mother of the prosecutrix. She stated that the prosecutrix was born on 26.09.1990. It is further stated that on 13.05.2008 at about 1.30 pm, the prosecutrix had gone to the Bazar. Thereafter she did not come back though she waited for her upto the evening. Her husband came back from the place of work at about 8.30 pm. She disclosed all the said facts to him. Then they searched for her (prosecutrix) in the houses of their relatives. Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -11- They could not find her (prosecutrix) in any of the houses. On 16.05.2008, her husband gave a written application about her to the Police Station, Division No.3,Jalandhar. On 28.05.2008, they were told by someone that the prosecutrix was with Manoj Sondhi (appellant). Then her husband (Shiv Kumar) had gone in search for her. Her statement was recorded by the police though her signatures were obtained in the police station. In cross-examination it is stated that the prosecutrix never disclosed to her as to where she had gone. It is stated as correct that she had a friend in the locality of Dholewal, Ludhiana. It is further stated as correct that the prosecutrix had told her that she had gone to that friend and stayed with her. She had told her (PW-9) upto 28.05.2008, she was staying with her friend in her house. It was incorrect that she also told her that she had never gone with Manoj Sondhi (appellant). She kept putting her signatures at the places asked for by the police. It is stated as correct that the prosecutrix was born on 26.09.1988. It is stated as correct that less age was given in the school record. At this stage the Court put a question to her (PW-9) that in the first part of her statement she stated the prosecutrix was born on 26.09.1990 and in the second part of her statement, she stated that she was born on 26.09.1988, therefore, which part of her statement was correct. She answered that her first statement was false and the second part of her statement was correct.
The prosecutrix (PW-10) in her deposition stated that Manoj Sondhi (appellant) had called her to Chandigarh on 13.05.2008. He Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -12- had given a threat that in case she did not come to Chandigarh, he would kill her brother. Lucky accused (since acquitted) took her to the bus stand. He made her sit in the bus that was going to Chandigarh. She went to Chandigarh and Manoj Sondhi (appellant) met her at that place. He took her to Mathura and kept her in a hotel for one day. At that place, he committed rape on her. Then he took her to Kolkata. At that place he kept her for one day. There also he committed forcible sexual intercourse with her against her consent. From that place he took her to Lucknow. He kept her there for 1-2 days. At that place, he committed rape on her. Then he brought her to Delhi. At that place she stayed in the house of his brother for a day. Then he brought her to Rohtak. At that place he kept her during the night and committed rape on her. Then he again brought her back to his brother at Delhi. In the evening they took a train for Ludhiana. He kept her at Ludhiana for 5-6 days in a closed room. At that place he committed rape on her. Then he took her to the house of his maternal uncle and again committed rape on her at that place. On 28.05.2008, her parents came to that place and took her back. They brought her to their house. Her statement was recorded by the police. It was also recorded by the Magistrate. She had put her signatures on the statement she made before the Magistrate. She was medically examined by the doctor. She identified her signatures on her statement (Ex.PE). In cross-examination it is inter alia stated by her that she met Lucky at the bus stand where she had gone alone. At that time there were number of persons at the bus stand. Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -13- She had not disclosed any fact to anyone of them. Money for purchasing the passenger ticket was given to Lucky by Manoj Sondhi (appellant). She was a matriculate. Previously she had never gone to any of her relatives and friends. In those days, telephone was installed at their house. She, however, did not know the number at that time. She did not have any cell phone with her. After reaching Chandigarh she had no talk with her family members on the telephone. Her marriage had already taken place. The same was performed on 29.07.2008. She had gone to the bus stand alone in a rickshaw. She had not disclosed to her family members as to the place where she was going. At the time, she left the house, her mother and the wife of her brother were present. It is stated as correct that thousands of persons were present at the bus stand. The bus had stopped 2-3 places on the way to Chandigarh. No quarrel had taken place between her and her parents. At the time when she got down from the bus at Chandigarh, some persons were present but she could not tell the number of persons. She made no effort to come back to her house on the way to Chandigarh. Only Managers of the said Hotels used to be present at the time of booking. The accused (appellant) had hired a Qualis vehicle and he had been shifting her from one place to the other. It was stated as incorrect that she moved with the accused to different places with her free consent. The prosecutrix was recalled for further cross- examination. She stated that she had seen the photographs Ex.D-1 to Ex.D-17. These were her photographs and the boy in the Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -14- photographs was Manoj Sondhi (appellant). All these photographs were taken in the temple which is at Ludhiana but she did not know if it is in Kanak Mandi. It was stated as incorrect that in these photographs she was wearing 'Churra' and had also applied 'sindoor'. These photographs were of the marriage in a temple but it was held under threat and force of Manoj Sondhi (appellant). It was incorrect to suggest that the cermony was performed with her free will and not under any such threat. She was a matriculate and had seen the affidavit Ex.DA which bears her signatures. The signatures were put by her at Ludhiana but she was not disclosed about the contents of the documents. It was correct that another writing in Punjabi was also got typed and her signatures were obtained but that was also got done by the accused under force and threat. It was correct that in that affidavit it was mentioned that her parents were going to marry her against her wishes and that she has come on her own but it was got written by the accused (appellant) and not by her. It was wrong to suggest that she had falsely denied all these facts.
Hans Raj (PW-11) Investigating Officer in the case deposed regarding the investigations conducted by him. In cross-examination it is stated as incorrect that the prosecutrix had never made any statement before him and in order to strengthen the case of the prosecution, he had fabricated her statement. It was incorrect that she had never stated her age before him and her age was disclosed only by Shiv Kumar. The prosecution evidence was closed and the statement of the appellant in terms of Section 313 Cr.P.C. was Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -15- recorded. In his defence he took the stand that he was innocent and was falsely implicated.
The accused in their defence examined Sh. Gurmit Singh, Naib Tehsildar, Payal (DW-1). He had attested the affidavit dated 23.05.2008 (Ex.DA) of the prosecutrix (PW-10). She was identified by Sh. Raj Pal, Advocate. The Clerk had taken the photograph of the deponent (prosecutrix) on the computer at the time of his affidavit.
Ajay Kumar (DW-2) identified the signatures of his father Sh. Raj Pal, Advocate on the affidavit (Ex.DA) deposed by the prosecutrix. His father Sh. Raj Pal was practising as a lawyer at Ludhiana and had died. He died on 5.6.2008.
Arjun Singh (DW-3) deposed that he knew the family of Randhir Singh (since acquitted).
The learned Sessions Judge, Jalandhar after considering the evidence and material on record acquitted Randhir Singh alias Lucky Sandhu for the offence for which he was charged. However, the appellant was held guilty for the offence under Section 376 IPC and he was sentenced to undergo rigorous imprisonment for seven years; besides, pay a fine of Rs.5000/- and in default of payment of fine, to undergo rigorous imprisonment for six months.
Ms. G. K. Mann, Advocate for the appellant has contended that the prosecutrix on her own had gone with the appellant and had been with him at various places. He could have informed the police or even passersby of her being subjected to rape. However, she did not do so and this was clearly due to the reason that she was a Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -16- consenting party. Therefore, the sexual intercourse that is alleged to have been committed was in any case with her consent which does not constitute an offence of rape.
In response Mr. S.S.Dhaiwal, Addl. AG, Punjab learned counsel for the State submitted that the date of birth of the prosecutrix is 26.09.1990 and she was surreptitiously taken by the appellant on 13.05.2008 with the object of committing rape; besides, it is submitted that the rape had been committed on the prosecutrix by the appellant representing that he was to marry her and in fact had performed some kind of ceremony only to represent a marriage, which was fake. Therefore, the consent, even if any of the prosecutrix was obtained by misrepresentation that he was her husband whereas he was not. The fact of an alleged marriage ceremony being performed it is submitted is quite evident from the photographs (Ex.D1 to Ex.D-17)produced by the defence. Therefore, the sexual intercourse to which the prosecutrix was subjected to was under the representation of the appellant that he was her husband.
I have given my thoughtful consideration to the matter. The sequence of events as has been noticed above are not much in dispute. It is quite evident that the prosecutrix on her own on 13.05.2008 at about 1.30 pm left her house at Jalandhar and went to Chandigarh. She went alone in a rickshaw to the bus stand Jalandhar where Lucky Sandhu (since acquitted) met her and put her on the bus to Chandigarh. On the way to Chandigarh, the bus stopped at several places but the prosecutrix in a well-disposed Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -17- manner reached Chandigarh. She was received at the bus stand by some persons and then she went with the appellant to various places like Mathura, Agra, Lucknow, Kolkatta, Delhi, Rohtak and Ludhiana.
The prosecutrix in her deposition as PW-10 states that from Chandigarh, the appellant took her to Mathura and he kept her in a hotel for one day. At that place he committed rape on her. Then he took her to Kolkata where he kept her for one day. There also he committed forcible sexual intercourse with her against her consent. From there he took her to Lucknow where he kept her for 1-2 days. At that place, he committed rape on her. Then he brought her to Delhi. At that place they stayed in the house of his brother for a day. Then he brought her to Rohtak. At that place he kept her during the night and committed rape on her. Then he again brought her back to his brother at Delhi. In the evening they took a train for Ludhiana. He kept her at Ludhiana for 5-6 days in a closed room. At that place he committed rape on her. Then he took her to the house of his maternal uncle and again committed rape on her at that place. On 28.05.2008 her parents came to that place and took her back. The prosecutrix, therefore, for 15 days' from 13.05.2008 to 28.05.2008 had remained with the appellant.
In the statement (Ex.PE) before the learned Judicial Magistrate Ist Class Jalandhar (PW-3), the prosecutrix mentions that from Chandigarh she was taken to Mathura, where she was kept at a hotel and at night she was raped (Jabardasti Kitti). The next day she was taken to Agra where she was kept in a hotel and there also Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -18- forcible rape was committed on her. Then he took her to Kokatta and kept her for one night and there also he committed rape on her. Then the appellant got her to Lucknow and kept her for the night and he repeatedly committed rape on her. Then he got her to Delhi to the house of his brother where they stayed for half a hour. Then they came to Rohtak where she was kept for the night. There also rape was committed on her. Her ear rings were sold to get petrol filled in the 'Quallis'. Then he came to his brother at Delhi. They left the vehicle there and took the train to Ludhiana. Then at Ludhiana she was kept for five days in a closed room. There also he committed rape on her and also used to beat her. Then he took her to the house of his uncle (father's younger brother) where also he committed rape with her. Then on 28.05.2008 her parents got to know and with police help took her back. The appellant earlier also used to keep coming and going to their house because he had earlier got her brother Sunny released from the police.
The affidavit Ex.DA has been deposed by the prosecutrix to the effect that her date of birth is 26.10.1989 and she was a major and she could think about her future and welfare. She had a love affair with Manoj Sondhi (appellant) for the last two years. She had full knowledge regarding the first marriage of said Manoj Kumar Sondhi (appellant) and also had knowledge that he has having three children. The said fact was very much in the knowledge of her parents and other family members. She got married with Manoj Kumar (appellant) with a free consent and sweet will. It is stated that Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -19- it was pertinent to mention that nobody had put pressure on her to solemnize this marriage. She left her maternal (sic.) home with her own will and after thinking her future. The affidavit (Ex.DA) was deposed on 23.05.2008. Apart from the affidavit, there are seventeen photographs (Ex.D1 to Ex.D7) of the appellant and the prosecutrix allegedly being married in a temple.
The learned trial Court as already noticed acquitted Randhir Singh; besides, the appellant has not been convicted for the offence under Section 366 IPC. The facts and circumstances evidently show that the appellant had taken the prosecutrix with her and she had gone with him in a well-disposed manner, which is evident from the fact that she had gone to several places with him. There was sexual intercourse between them and she was subjected to rape. Dr. Damanjit (PW-1) has opined that she was subjected to rape. Dr. Damanjit (PW-1) though stated that vagina of the prosecutrix admits two fingers and in her cross-examination she stated as correct that when vagina of a girl admits two finger, it can be inferred that she was habitual to sexual intercourse. However, even if the victim of a rape case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and every one as she is not vulnerable object and neither a prey for being sexual assaulted and past promiscuous behaviour is no ground to condone the act of rape.
The offence of rape has been defined in Section 375 IPC which has recently been changed to quite an extent by Act No.13 of Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -20- 2013 with effect from 03.02.2013. The sentence provided for in terms of Section 376 IPC by way of amendment has become somewhat more stringent. In terms of the unamended provisions of Section 376 (1) IPC, minimum sentence of imprisonment for the offence of rape was seven years. However, in terms of the proviso to the unamended section, it was provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. The said proviso has been omitted by Act No.13 of 2013. The sentence, therefore, now being somewhat more stringent, the provisions of the unamended Act would apply. The Supreme Court in Harjit Singh versus State of Punjab, (2011) 4 SCC 441 considered the effect notification published on 18.11.2009 under the Narcotic Drugs and Psychotropic Substances Act which enjoined that the quantities of the drugs as shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 were to apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ether's and isomers, wherever existence of such substance is possible and not just its pure drug content. The effect of the said notification was that the whole quantity of the recovered contraband in the form of mixture was to be considered for the pupose of imposing punishment. In other words, the substance of the recovered contraband was to be taken in its entirety and not Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -21- just the pure contents of the narcotic drugs or psychotropic substance as the case may be. The said notification dated 18.11.2009, replaced a part of an earlier notification dated 19.10.2001. It was held by the Supreme Court that it is settled legal proposition that a penal provision providing for enhancing the sentence does not operate retrospectively. This amendment, it was held, in fact provided for a procedure which may enhance the sentence. Thus, its application would be violative of the restrictions imposed by Article 20 of the Constitution of India. It was held that the Notification dated 18.11.2009 could not be applied retrospectively and therefore, had no application to the said case in which the contraband of opium was recovered on 04.07.2003 which was much earlier to the Notification of 18.11.2009. Therefore, the position as it stood earlier to the amendment effected to Sections 375 and 376 IPC by Act No.13 of 2013 would apply as the offence attributed to the appellant had been committed during the period from 13.5.2008 to 28.5.2008 before the amendments to Sections 375 and 376 IPC providing for more stringent punishments became effective from 3.2.2013.
Ms. G. K. Mann, Advocate for the appellant has placed strong reliance on the case of Alamelu and another versus State represented by Inspector of Police, 2011 (1) RCR (Criminal) 498 (SC) to contend that in the said case the prosecutrix had stayed with the accused for six days and she did not make any complaint on so many occasions when she had the opportunity to do so. She also Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -22- had the opportunity to run away but she did not do so. She failed to prove that she was a minor at the time of abduction and the prosecutrix married in a temple and no evidence was brought that marriage was solemnized against her wishes and the accused therein was acquitted. Therefore, it is submitted that the present case is covered by the ratio of the judgment in the said case and in similar facts and circumstances, the appellant is liable to be acquitted.
The contention of Ms. Mann that the present case is similar to that of Alamelu and another (supra) may be correct. However, there is one difference and it is not shown in the said case that the accused therein was earlier married. In the present case it has come on record in the FIR (Ex.PG/1) and also in the affidavit (Ex.DA) of the prosecutrix that the appellant was married and had three children. The prosecutrix was performing her marriage with the appellant knowing the fact that he was earlier married and had three children. During cross-examintion of the prosecutrix (PW-10), the photographs (Ex.D1 to Ex.D17) were put to her and she accepted that these were her photographs and the boy in them was Manoj Sondhi (appellant). These photographs were taken at a temple in Ludhiana. However, she did not know if it was in Kanak Mandi. In these photographs she was wearing a 'chura' and had also applied 'sindoor'. The photographs were of the marriage in a temple but it was held under threat and force from Manoj Sondhi (appellant). It is stated as incorrect to suggest that this ceremony was performed with her free Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -23- will and not under any such threat. In the circumstances, it may be noticed that in fact the prosecutrix had gone with the appellant on an understanding with him that he would marry her. She deposed an affidavit (Ex.DA) in which she states that she was performing her marriage with the appellant knowing the fact that he was earlier married and had three children. However, no ceremony of solemnization of actual marriage is shown to be established or performed. The appellant in fact could not have solemnized a valid marriage with the prosecutrix as he was earlier married. The appellant committed sexual intercourse with the prosecutrix by representing himself that he was to marry her and later carried out some sort of an alleged fake ceremony showing that he had married her without the actual ceremony being peformed. Therefore, it is quite evident that the fourth description of Section 375 IPC would apply; that the consent of the prosecutrix was with the understanding that the appellant knew that he was not her husband and her consent had been given because she believed that he is another man to whom she is or believed herself to be lawfully married. In defence the appellant has produced photographs Ex.D1 to Ex.D17 of them being married in a temple and has also produced on record affidavit (Ex.DA) to show that he had performed marriage with the prosecutrix. However, he knew that being already married he could not marry again and, therefore, he obtained her consent for having sexual intercourse by representing himself to be the husband of the prosecutrix and she believing that he would in any case be her Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -24- husband and later even became her husband. The affidavit Ex.DA was deposed on 23.05.2008 at Ludhiana and she was recovered from Ludhiana on 28.05.2008. Therefore, after the affidavit had been deposed on 23.05.2008 regarding the marriage, she was subjected to sexual intercourse, which amounted to rape as it was well known to the appellant that in fact no marriage had been performed and neither had any marriage been shown to have been performed but on that representtion and the prosecutrix beliving the appellant to be her husband may have consented to have sex, which amount to rape being committed.
The prosecutrix was in the age of 18 to 20 years. In case her date of birth is taken as 26.05.1990 which is the date recorded in her matriculation certificate, then she was less than 18 years on 13.05.2008 when she was taken by the appellant. In case the date of birth is to be taken as 26.09.1988 which according to her mother Smt. Seema (PW-9) is the correct date, she was about 20 years. In case her date of birth is taken as 26.09.1989 as deposed by her in her affidavit (Ex.DA), she would be 19 years on 13.5.2008. However, even though the prosecutrix had reached the age of discretion but it is quite possible that she may have been unaware and may not be mature enough to know that the appellant being already married could not perform his marriage with the prosecutrix and he had in fact not performed any marriage with her and he committed sexual intercourse with her by representing himself to be married and she believing that she was her husband. Therefore, clause 'fourthly' of Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -25- Section 375 would apply and it is clearly a case of rape being committed on the prosecutrix.
The punishment for the offence of rape is not to be less than seven years. However in terms of the proviso to the unamended Section 376 IPC which is applicable in the present case, the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. After amendment of Section 376 IPC by Act No.13 of 2013 the proviso to Section 376 has been omitted. However, as already noticed the unamended provisions would apply to the present case.
Learned counsel for the State has filed affidavit dated 16.08.2013 of Shri Surinderpal Khanna, PPS, Superintendent Central Jail, Ludhiana mentioning the period of imprisonment undergone by the appellant. In terms of the said affidavit, the appellant has undergone actual imprisonment of four years, nine months and twenty two days as on 15.08.2013. He has earned remissions of eleven months and eight days and his total custody including remissions is five years and nine months. It is also mentioned as per jail records that FIR No.27 dated 14.03.2008 for the offence under Section 307 etc. IPC stands registered against the appellant at Police Station, Lambra in which he is on bail; besides, he has been acquitted in case FIR No.131 dated 14.12.2005 registered at Police Station Division No.2, Jalandhar for the offences under Sections 323, 427, 147 and 149 IPC. The said cases, however, are not of much Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -26- relevance as in view of Section 54 of the Indian Evidence Act, in criminal proceedings the fact that the accused persons had a bad character is irrelevant unless evidence has been given that he had a good character in which case it becomes relevant. In terms of Explanation 2, thereof, a previous conviction is relevant as evidence of bad character. In the present case, there is no previous conviction and bad character is irrelevant unless it is shown that the appellant had a good character. Therefore, the appellant out of the sentence of seven years that has been imposed has undergone sentence of five years and nine months as on 15.08.2013. The facts and circumstances of the case are such that the prosecutrix had gone from her house on her own in a well disposed manner and she was with the appellant. They had gone together to various places like Mathura, Kolkata, Lucknow, Delhi, Rohtak and then at Ludhiana and she was subjected to sexual intercourse with her consent being obtained in a stealthy manner. In the cross-examination of the prosecutrix (PW-10), she has stated that she was married on 29.7.2008. Therefore, after the incidents from 13.5.2008 to 28.5.2008, she has got married on 29.7.2008. The sentence continuing against the appellant may also have some impact on her married life. Therefore, in the peculiar facts and circumstances as also the said adequate and special reasons, it would be just and expedient to put an end to the matter and reduce the sentence of imprisonment in respect of the appellant to less than the minimum and sentence him to imprisonment for the period already undergone. Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document CRA No.S-1035-SB of 2010 -27- However, the sentence of fine of Rs.5000/- and in default of payment of fine to undergo further rigorous imprisonment for one year is to remain intact.
Accordingly, the appeal against conviction is dismissed. However, the sentence of imprisonment of the appellant is modified and reduced to the period already undergone; besides, he shall pay a fine of Rs.5000/- and in default of payment of fine he shall undergo further rigorous imprisonment for one year.
(S. S. Saron) Judge 31.08.2013 A.Kaundal/amit Amit Khanchi 2013.09.02 15:24 I attest to the accuracy and integrity of this document